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HomeMy WebLinkAbout12/05/2006 Blue Sheet Joint Defense Agreement Cortaro Marana Irrigation District TOWN COUNCIL MEETING INFORMATION TOWN OF MARANA MEETING DATE: December 5, 2006 AGENDA ITEM: 1.4 TO: MAYOR AND COUNCIL FROM: Frank Cassidy, Town Attorney SUBJECT: Resolution No. 2006-196: Relating to Water; ratifying the Manager's execution of a Joint Defense Agreement with Cortaro-Marana Irrigation District and Cortaro Water Users Association to protect attorney/client and work product privileges in connection with water rights discussions under the Gila River Adjudication. DISCUSSION The Manager executed a Joint Defense Agreement on November 20,2006, with Cortaro-Marana Irrigation District (CMID) and the Cortaro Water Users Association (CWUA) to facilitate a wa- ter rights legal discussion between counsel for Marana, CMID, and CWUA. All of the water rights in question relate to the Gila River Adjudication. The Joint Defense Agreement will allow the sharing of legal analysis among the attorneys for Marana, CMID, and CWUA without waiv- ing either the attorney/client or work product privileges. Although the Town Manager's authority under Town Code Section 3-2-1 is almost certainly broad enough to include his authority to execute an agreement of this type, the Legal Department requests ratification of the Joint Defense Agreement so that there will be absolutely no question that the Joint Defense Agreement is valid and enforceable with respect to the Town of Marana. RECOMMENDATION Staff recommends adoption of Resolution No. 2006-196, ratifying the Manager's execution of a Joint Defense Agreement. A TT ACHMENT(S) Joint Defense Agreement SUGGESTED MOTION I move to adopt Resolution No. 2006-196. {00002989.DOC /} FJC/cds 11/21/06 MARANA RESOLUTION NO. 2006-196 RELATING TO WATER; RATIFYING THE MANAGER'S EXECUTION OF A JOINT DEFENSE AGREEMENT WITH CORTARO-MARANA IRRIGATION DISTRICT AND CORT ARO WATER USERS ASSOCIATION TO PROTECT ATTORNEY/CLIENT AND WORK PRODUCT PRIVILEGES IN CONNECTION WITH WATER RIGHTS DISCUSSIONS UNDER THE GILA RIVER ADJUDICATION. WHEREAS the Manager executed a Joint Defense Agreement on November 20,2006, with Cortaro-Marana Irrigation District (CMID) and the Cortaro Water Users Association (CWUA) to facilitate a water rights legal discussion between counsel for Marana, CMID, and CWUA; and WHEREAS, the Mayor and Council ofthe Town of Maran a feel it is in the best interests of the public to ratify this agreement. NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, that the Joint Defense Agreement between the Town of Maran a, CMID, and CWUA attached to and incorporated by this reference in this resolution as Exhibit A is hereby ap- proved, and the Manager's execution of this Agreement is hereby ratified, for and on behalf ofthe Town of Marana. IT IS FUR THER RESOLVED that the Town's Manager and staff are hereby directed and au- thorized to undertake all other and further tasks required or beneficial to carry out the terms, obliga- tions, and objectives of the Joint Defense Agreement. PASSED, ADOPTED, and APPROVED by the Mayor and Council of the Town of Maran a, Arizona, this 5th day of December, 2006. Mayor Ed Honea ATTEST: Jocelyn C. Bronson, Town Clerk APPROVED AS TO FORM: Frank Cassidy, Town Attorney {00002990.DOC /} FJC.'cds 11/21/06 JOINT DEFENSE AGREEMENT This Joint Defense Agreement ("Agreement"), effective as ofthe~1ate of November, 2006, is entered into by and among the Town of Marana, a municipal corporation, ("Marana"), the Cortaro-Marana Irrigation District, a political subdivision ("CMID") and the Cortaro Water Users Association, a non-profit Arizona corporation ("CWUA"), individually referred to as a "Party" or "Client" and collectively referred to as the "Parties". RECITALS A. The Parties%imants in and/or depend on water subject to "In Re The General Adjudication of All Rights to Use Water in the Gila River System and Source, W-1, W-2, W-3, W-4 (Consolidated) in the Maricopa County Superior Court of the State of Arizona, (the "Gila River Adjudication"). The action seeks a judicial determination or establishment of the extent and priority of the rights of all persons to use water in any river system and source including those involving the Santa Cruz River and its tributaries. B. The water resources available to Cortaro-Marana area are of mutual interest and concern to the Parties. The Parties entered into an Intergovernmental Agreement dated September 16, 1997 wherein the Parties, inter alia, agree to "cooperate to put the appropriative rights to full beneficial [use] and to the extent the full appropriative right is no longer needed for meeting agricultural water needs, then the Parties shall take such actions as are prudent to utilize the appropriative right for non-agricultural purposes" (Section 3.1.5) and to "take all reasonable steps to preserve and protect District and Town Water rights and resources and neither party will knowingly enter into an agreement in the future which will adversely affect the other Party's water rights and resources or limit the economic benefit that can be received therefrom" (Section 8.4.2). C. One such reasonable step/prudent action is to jointly defend the water rights in the general adjudication and to prepare a mutual defense to the potential claim of others that would have the affect of diminishing the Parties' water rights and resources. D. The Parties have a common interest in defending themselves against the claims asserted against the water claims and resources of the Parties. The Parties have therefore agreed to cooperate and coordinate their defense of their respective water claims and resources. To advance these goals, the Parties now desire to enter into this Agreement to provide for a joint defense of their respective water claims and resources. NOW, THEREFORE, in consideration of the mutual covenants and conditions contained herein, the Parties agree as follows: 1. Mutuality of Interest: The undersigned Parties and their attorneys (each a "Party's Counsel", collectively the "Parties' Counsel") believe that there is a mutuality of interest in a common and joint defense in regard to the claims asserted in the Gila River Adjudication. Accordingly, the Parties wish to continue to pursue the Parties' separate but common interests, and to avoid any suggestions that they have waived the confidentiality of privileged communications or any attorney work product, such as memoranda, documents or similar information when appropriate among defense counsel. It is therefore the Parties' intention and understanding that communications between each Party and his Counsel, or among any and all Parties' Counsel, are protected from disclosure to any third-party pursuant to attorney-client privilege and/or the work-product doctrine. Notwithstanding the foregoing, the Parties understand and agree that some defenses may be unique to each party. Nothing in this Agreement limits a Party's ability to fully assert all defenses available and relevant to it, even if such assertions or defenses are adverse to another Party who is a signatory to this Agreement. 2. Maintenance of Privilee:e In order to pursue their joint defense effectively, the Parties have also concluded that, from time-to-time, the mutual interests of the Parties will be best served by sharing documents, factual material, mental impressions, strategies, legal theories, memoranda, interview reports, and any other documents or information, including the confidences of each Party (hereinafter referred to as "Defense Materials"). In the absence of such sharing, these Defense Materials would be privileged and protected from disclosure to any third party as a result of the attorney- client privilege, the attorney work-product doctrine, and other applicable legal privileges. It is the purpose of this Agreement to ensure that the exchange or disclosure of Defense Materials to the Parties' Counsel contemplated herein does not diminish, in any way, the confidentiality of the Defense Materials and does not constitute a waiver of any legal privilege, doctrine or other protection from disclosure otherwise available. 3. Consent and Other Rie:hts It is understood and agreed that information obtained by any of the Parties or any Party's Counsel from any other Party or any other Party's Counsel shall remain confidential and shall be protected from disclosure to third parties, except as provided herein. It is further understood and agreed that any documents exchanged between the Parties' Counsel and any otherwise privileged information contained therein, or any other confidences exchanged between the Parties' Counsel, shall be used solely in connection with the joint or common defense of the claims asserted in the Gila River Adjudication. The Parties and the Parties' Counsel further agree that neither any Party's Counsel nor any Party will disclose any Defense Materials received from each other, or the contents thereof, to anyone other than the Parties, their attorneys or any consultant or staff working at their direction without first obtaining the consent of all Parties who may be entitled to claim any privilege or assert any doctrine or other right of non-disclosure with respect to such materials, as well as the consent of each of the Party's Counsel for each affected Party. It is expressly understood that nothing contained herein shall limit the right of any Party's Counsel to disclose any documents or information obtained from his or her respective Client provided such material deals solely with information related to the claims made against the Party making such disclosure or any information that has been independently obtained by such Party's Counsel. 4. Demand or Subpoena of Material If any other person or entity requests or demands, by subpoena or otherwise, any Defense Materials received from one Party's Counsel or jointly obtained by anyone Party's Counsel on behalf of the other Party's Counsel, the Party's Counsel receiving such request or demand shall immediately notify any and all Parties with rights in or an interest in preventing the disclosure of said materials and their respective Counsel. The person or entity seeking such materials shall be informed that these are Defense Materials that are only on loan and subject to the limitations of this Agreement and that demand should be made on the appropriate Party. Each Party's Counsel will take all steps necessary to permit the assertion of all applicable rights or privileges by any Party holding such rights or privileges with respect to said Defense Materials and shall cooperate fully with all other Parties' Counsel in any judicial proceeding relating to preventing or protection the Defense Materials from disclosure. 5. Joint Defense/Common Interest Doctrine It is understood that all work performed by the undersigned Parties, their Counsel, and the employees and agents of the Parties and Counsel with regard to their legal representation, and any communication between or among any Parties and their respective Counsel in connection with their legal representation, shall be undertaken pursuant to the work product doctrine, the attorney client privilege, the ''joint defense doctrine" or "common interest" doctrine and any other applicable legal rights, doctrines and privileges, including, without limitation, those recognized in Continental Oil Co. v. Us., 330 F.2d 347 (1964); Hunydee v. Us., 355 F.2d 183 (1965); and Arizona Independent Redistricting Commission v. Fields, 206 Ariz. 130, 75 P.3d 1088 (App. 2003). 6. Chane:ed Circumstances: Withdrawal If any Party decides to withdraw from this Agreement for any reason, that Party's Counsel shall immediately notify Counsel for each Party in writing in accordance with the notice provisions of this Agreement, of that Party's withdrawal from this Agreement. Such withdrawal shall be effective when such notice is sent to all Parties' Counsel. This Agreement and any rights, doctrines and privileges intended to flow from it shall remain in effect as to any and all remaining Parties and their respective Counsel that have not withdrawn from this Agreement. However, no such termination shall in any way affect or impair the obligations of confidentiality with respect to Defense Materials previously furnished to or by the withdrawing Party or exchanged among the Parties pursuant to this Agreement. Further, any Party's Counsel and his or her Client shall, upon withdrawal, return all Defense Materials provided by other Parties thereto, including any copies of any Defense Materials that such Party's Counsel and Party made or had made during the course of the joint defense. 7. Conflict of Interest and Disqualification (a) The Parties' Counsel and their respective clients agree that in the event that any Party, or its employee, consultant or agent becomes an adverse witness, nothing in the Agreement shall be used to create a conflict of interest so as to require the disqualification of any Party's Counsel from the representation of his/her Client. If such conflict arises in the future, the Parties and the Parties' Counsel hereby waive any such conflict of interest. Counsel and their respective Clients further agree that neither the Defense Materials received from each other, nor the contents thereof, will be used to cross-examine any such Party or its employee, consultant or agent who becomes a witness in any proceeding related to the claims alleged in the Gila River Adjudication. (b) It is agreed that no Party's Counsel shall be disqualified from examining or cross- examining any Party, or its employee, consultant or agent that testifies at any proceeding, whether under grant of immunity or otherwise, because of such Party's participation in the Agreement. Each Party's Counsel specifically warrants that he/she has advised his or her client of the terms of the Agreement., including this clause, and each Party specifically agrees to be bound by the terms of this waiver provision. 8. Limitation of Duties and Conflicts Each Counsel have advised his/her Client that he/she is represented by his/her own attorney in this matter, and that, while the attorneys representing the other Parties to the Agreement have a duty to preserve the confidences disclosed to them pursuant to this Agreement, each attorney will be acting only as the attorney for and on behalf of his /her Client. No Party's Counsel will therefore owe a duty ofloyalty to any other Party, but will maintain the confidentiality of Defense Materials as provided herein. Each Client has agreed to knowingly and intelligently waive any conflict of interest that may arise from a Party's Counsel, other than its own attorney, examining them at any proceeding. 9. Iniunctive Relief The Parties acknowledge that disclosure of any communication or Defense Materials in violation of this Agreement will cause the Parties hereto to suffer irreparable harm for which there is no adequate legal remedy. Each Party therefore agrees that immediate injunctive relief is an appropriate and necessary remedy, but may not be the exclusive remedy, for any violation or threatened violation of the Agreement. 10. Continuance of the Af!reement In any action seeking remedies for a violation of this Agreement, each Party may assert any and all claims, defenses or positions not otherwise barred by the terms and conditions of this Agreement. This Agreement shall continue in effect notwithstanding any judgment, decision or resolution as to any Party of the claims asserted in the Gila River Adjudication or any pending or future civil or administrative proceedings arising out of or relating to such claims. The Parties agree that they will continue to be bound by this Agreement following any such conclusion or resolution. .-.-'----- 11. General Provisions (a) Counsel to be Bound. The Parties acknowledge that all of their respective attorneys shall be bound by this Agreement. (b) Modification. No oral modifications or amendments to this Agreement shall be effective. This Agreement may be amended to add additional parties who have or may in the future have similar common interest in a joint defense. Any amendments to or modifications of this Agreement must be in writing and signed by all Parties. (c) Assilmment. This Agreement shall be binding upon and inure to the benefit of the respective successors, legal representatives and assigns of the Parties. (d) Entire A~reement. This Agreement is the final integrated agreement of the Parties. This Agreement supersedes all prior oral or written negotiations or agreements pertaining to the subject matter hereof, and any, and all statements, representations, promises or inducements not set forth herein are null and void and not binding on any of the parties. Nothing in this Agreement shall be deemed to create any kind of a relationship between the Parties other than as provided herein, and the Parties do not intend this Agreement to benefit any other person not a signatory to this Agreement. (e) Severability: Choice of Laws. Any notice required or permitted by this Agreement shall be in writing and signed by the Party giving notice, or by that Party's Counsel, and shall either be hand-delivered or mailed in the United States mail (first-class or certified) to the Parties and their attorneys at the addresses set forth below. (1) Non-Waiver. Any waiver in any particular instance of the rights and limitations contained herein shall not be deemed, and is not intended to be, a general waiver of any rights or limitations contained herein and shall not operate as such. (g) Explanation. By signing the Agreement, each Party certifies that each Party's Counsel has explained the contents of this Agreement to that Party, and that the Parties agree to abide by the terms and conditions contained in this Agreement. [SIGNATURES APPEAR ON THE NEXT PAGE] ,...".~~"-.............._-,,_...........-.........,, The Parties' Counsel and each Party, agree to be bound and to comply with each term and condition of this Agreement. Each counsel and client understands all other Parties and Parties' clients are relying on the mutual promises and representations contained herein as a material inducement to entering this Agreement. Town of Maran a BY~V _J Mike Reuwsaat, Town Manager Cortaro-Marana Irrigation District I 85\-3-1-27\DocumentsIJOINf DEFENSE AGREEMENT Approved as to Form: BY:~ William P. Sullivan, Attorney for Cortaro- Marana Irrigation District and Cortaro Water Users Association